M A R R I A G E . B ook If,
Have dies before delivery.— Aboo Haneefa, on the other hand, fayS
that where nomination and pointed reference * are united, regard muft
be had to'the latter, becaufe indication is more clear and exprefs under
that form, and hence the cafe is the fame as i f the man had engaged
to give, as a dower, wine or a hog +. Mohammed (coinciding with
Haneefa with refpect to the have, and diflenting from him with re-
lpedt to the vinegar, as aforefaid,) fays that it is a rule, that if the
thing named be of the fame fpecies with the thing fpecified by pointed
reference, the contract is connected with the latter ; but if the thing
named be of a fpecies diftinCt and different from the thing pointedly
fpecified, it [the contract] is connected with the thing named; lae-
caufe indication is more effectual from naming a thing, than it is from
pointing that thing out, inafmuch as it is thereby known what that
thing is, whereas by pointing it out the fubjlance only is known ;—
on which principle it is that i f a man purchafe a ring ftone, on the
condition of its being a ruby, and it fhould prove to be only a garnet,
the bargain is void, on account of the difference of fpecies ; but if a
perfon were to purchafe a Hone on condition of its being a r u b y and'
i t fhould prove to be an emerald, yet the bargain holds good, becaufe
thefe are held by lapidaries to be of the fame fpecies:— now, in the
prefent inftance, the flave and the free perfon are of one and the fame
fpecies; the contradt, therefore, is connedted with the thing identically
fpecified or pointed out, and on this principle her proper dower is
due to the woman; but wine and vinegar being of diftindt fpecies,
,and totally different from each other, (inafmuch as the latter is lawful ;
in ufe, and the former prohibited,) the contract is there connected
* Tafmeeat and IJharet: the Former term means fimply naming a thing, or (as ex- I
prefled above) nomination} by the latter is,.underflood pointing .a thing out, fuch as u This I
flave,” &c.
f That is tofay, the condition is altogether void, and a proper dower is of courfe due;
for, if the man were to fay a I will give as a dower this Have,” and the perfon fo fpoken
o f fhould appear to.be free, it is evident (regard being had to the relative “ this,” denoting
„pointed reference) that the condition or agreement is ipfo fa fto null, as regarding a ib'H
which does not exift.
C hap- HI. M A R R I A G E . M J
with the thing nominally fpecified, and Cpnfequeptly the woman is
entitled to vinegar equal in quantity to the wine.
If a man marry a woman, agreeing >to give her, 3$ a dower, .tw,o
flaves fpecified, as if he were to fay “ I afirgn, as a do\yer, thqfie
“ two Haves;” and it fhould happen that one of the perfqns fo fpecified
as Jlaves is fr e e , in this cafe, according tp Haneefa, the woman
is not entitled to more than the Angle Have remaining, provided the
value be equal to ten Dirms, becaufe the flaveis particularly afligned,
and where the aligned dower is admitted to be incumbent, this prohibits
the obligation to a prayer dower;— as where a man, fpr inftance,
marries a woman, aligning her, as a dower, a piece o f cloth o f tfie
value of five Dirms, in which cafe the woman gefs the piece o f clpth
aforefaid, together with five Dirms in money, in fuch a manner as that
the whole (hall amount to ten Dirms, being the loweft legal dower,
beyond which nothing is incumbent. Aboo Toofaf alleges that, in
this cafe, the woman gets the Have, together with the amount of the
eflimated value of the other perfon, fupppfing he were a Have, becaufe
here the man has filled her with expectation of two flaves, the delivery
of one of which afterwards appears to be impoflihle; wherefore
the value of the latter is obligatory upon him. Mohammed has faid (and
there is alfb one opinion recorded of Haneefa to the farne effect) that
the woman gets the Have, together with a property fufficient tp complete
her proper dower, i f that fhould exceed the value of the Have;
becaufe, i f both the perfans named as Haves by the hufband, infpeci-
fyingthe dower, were actually fr ee, the whole proper dower (according
to Mohammed) would be due; and confequently, wh^te yne only
JS a Have, that Have is due, together with .fuph property (alopg
with the Have) amounts to a proper dower.
I f the Kitstee feparafe a man fropi lus-WjiFe, heforp cohabitation,
on account of their marriage b.eing ipvalid, thp woman js qqot -entitled
tp any part of her dower, becaufe, where thé marriage is invalid,
V ol, I. U no
A woman is
not entitled
to any dower
under an invalid
marriage
dif